Wednesday, December 29, 2010

In Kortum v. Sink (1D10-2459), the First District reversed the trial court's decision and held that section 626.854(6), Florida Statutes (2008) "unambiguously bans all solicitation for 48 hours and that this restriction on commercial speech violates Article I, § 4 of the Florida Constitution under the standards of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980)." The statute at issue "bans solicitation by public adjusters for a period of 48 hours." The court stated:

During its 2007 special session, the Florida Legislature created the Task Force on Citizens Property Insurance Claims Handling and Resolution (Task Force) to make recommendations regarding the 2004-2005 hurricane claims of Citizens Property Insurance Corporation. During its work, the Task Force became aware of the impact that public adjusters have on the insurance claims process following a hurricane. The Task Force identified abuses on the part of certain public adjusters and proposed legislation to revise the statutes governing public adjusters. Pertinent to this appeal, with respect to solicitation by public adjusters, the Task Force recommended that the legislature enact the following statutory provision:

A public adjuster shall not directly or indirectly through any other person or entity engage in face-to-face or telephonic solicitation or enter into a contract with any insured or claimant under an insurance policy until at least 72 hours after the occurrence of an event that may be the subject of a claim under the insurance policy unless contact is initiated by the insured or claimant.

The language of the statute enacted by the legislature, see § 626.854(6), Florida Statutes (2008), differed from the recommendation and provides as follows:

A public adjuster may not directly or indirectly through any other person or entity initiate contact or engage in face-to-face or telephonic solicitation or enter into a contract with any insured or claimant under an insurance policy until at least 48 hours after the occurrence of an event that may be the subject of a claim under the insurance policy unless contact is initiated by the insured or claimant.

(emphasis added). The legislature changed the language recommended by the Task Force by adding the phrase “initiate contact or” and reducing the temporal length of the solicitation restriction from 72 to 48 hours.

Kortum, a public adjuster, filed a complaint for declaratory and injunctive relief alleging that section 626.854(6) violates his constitutional rights to free speech, equal protection of the laws, and to be rewarded for his industry. Because we agree with Kortum that section 626.854(6) unconstitutionally burdens the commercial free speech rights of public adjusters, we do not address his further contention that the statute violates his right to equal protection of the law or his right “to be rewarded for industry” guaranteed by Article I, § 2 of the Florida Constitution.

Finally, the Court concluded as follows:

In sum, we are persuaded that the Department has failed to prove that section 626.854(6) is narrowly tailored to meet the state’s objectives. “While a statute regulating commercial speech need not be the least restrictive means of achieving the state’s asserted goal objective, it must be narrowly tailored to achieve the desired objective.” Cronin, 774 So. 2d at 875. The Department has not demonstrated that prohibiting property owners from receiving any information from public adjusters for a period of 48 hours is justified by the possibility that some public adjuster may unduly pressure traumatized victims or otherwise engage in unethical or unprofessional behavior. Nor has the Department demonstrated that the other provisions of section 626.854 and the Rules of Professional Conduct and Ethics governing the Florida Association of Public Insurance Adjusters governing public adjusters are insufficient to regulate unduly coercive or misleading solicitation by public adjusters.

You can view the briefs filed in this case by clicking on the following links:

Tuesday, December 28, 2010

In Norelus v. Denny's Inc. (07-14077), a divided three judge Eleventh Circuit panel released a published opinion and affirmed the district court's order sanctioning the attorneys for the plaintiff. Judge Carnes wrote the majority opinion. Judge Bowen, United States District Judge for the Southern District of Georgia, sitting by designation, concurred in the opinion with the exception of Section III.C. The portion of the opinion that Judge Bowen did not concur in is found on pages 49 through 62 of the opinion. Judge Tjoflat filed a dissenting opinion which begins on page 76. The trial court's decision was affirmed, however, the portion of the majority opinion which lacked a concurring judge presumably carries the weight of a concurring opinion. The opinion began:

No one’s memory is perfect. People forget things or get confused, and anyone can make an innocent misstatement or two. Or maybe even three or four. But not 868 of them. In this case, the plaintiff’s attorneys, William and Karen Amlong, filed a sixty-three page errata sheet containing 868 attempted changes to their client’s deposition testimony, which was the sole source of evidentiary support for their client’s claims. The district court exercised its authority under 28 U.S.C. § 1927 to sanction the Amlongs. This is their appeal, or more specifically their second appeal.

This is the second appeal as the trial court had previously entered a sanction order which was reversed with instructions. See Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230 (11th Cir. 2007).

In this second appeal, the court stated that "n attorney multiplies court proceedings 'unreasonably and vexatiously,' thereby justifying sanctions under 28 U.S.C. § 1927, 'only when the attorney’s conduct is so egregious that it is ‘tantamount to bad faith.’” Without even attempting to put words into Judge Carnes opinion, I interpret the opinion as having the biggest problem with the fact the the attorneys continued to represent the client, and pursue the same legal theories, after the filing of the errata sheet containing the 868 changes. The court stated:

As the magistrate judge found and no one (with the possible exception of the dissenting judge on this panel) seriously contests, the improper submission of the massive errata document rendered the eight days spent on Norelus’ deposition a waste of time and money to say nothing of the time the attorneys were forced to spend on the issues created by the document itself. The Amlongs’ decision to press on with Norelus’ claims after the creation of the errata document wasted more time and money. Together, the submission of the errata document and the continued pursuit of Norelus’ claims afterwards unquestionably prolonged and multiplied the proceedings......

Still, like Ahab hunting the whale, the Amlongs relentlessly pursued the claims. All the while they blinded themselves to as much of the contradictory evidence as they could. They deliberately did not obtain the deposition testimony of any of Norelus’ co-workers who would have seen or heard something had anything improper occurred. They did not concern themselves with that testimony, according to Karen Amlong, because they assumed all of the witnesses, except for their client, were either lying or simply could not remember witnessing the gross sexual harassment inflicted on her. When the truth was thrust in the Amlongs’ faces, they stubbornly ignored it and kept on litigating.

The portion of Judge Carnes' opinion which Judge Bowen did not join began:

Up to this point, we have addressed the issues related to the errata document and the award of sanctions as those issues have been raised and defined since that document was submitted fourteen years ago. Our dissenting colleague, by contrast, has hatched a brand new theory—a theory that was never raised by the parties, never considered by the district court, and never argued to this Court. The theory that he has conjured up is that the errata sheet was really nothing more than a “letter” from Karen Amlong to defense counsel. It was not, he insists, an errata sheet because he thinks it was never presented to the court reporter or affixed to Norelus’ deposition as, he thinks, Federal Rule of Civil Procedure 30 requires. Dissenting Op. at 1. He is wrong on his premises and wrong in his conclusion.

The section later stated:

The first and only time this issue has been raised in the more than fourteen years since the errata document was submitted is now, by our dissenting colleague who wants us to share his novel vision and reverse the district court’s award of sanctions on that basis. Even if his vision had any factual basis, there are two walls of precedent standing against what he wants to do. The first one is our well established rule against reversing a district court judgment on the basis of issues and theories that were never presented to that court—issues not raised in the district court should not be considered on appeal.

Finally, the section concluded "Issues should not sprout like weeds in appellate opinions no matter how fertile the minds of the judges deciding the appeal. We could not reverse the district court based on the dissenting opinion’s new theory of the case, even if it had a factual basis, which it does not."

The final section of the majority opinion, which Judge Bowen did join, addressed whether a party can be awarded those fees and costs that actually stemmed from the sanctions proceeding itself. The court stated:

This is the first time we have addressed whether a district court may include costs arising from the sanctions proceedings themselves in an award of § 1927 sanctions. Other circuits have tackled this issue in the closely related context of rules-based sanctions. Many of those courts have held that it is within the discretion of a district court to include within a sanctions award costs incurred in obtaining that award.

The court concluded that those fees and costs are awardable and stated:

We begin our analysis of what the statute permits where we always should: the statute’s plain language. See Nguyen v. United States, 556 F.3d 1244, 1250 (11th Cir. 2009). The plain language of 28 U.S.C. § 1927 establishes that, in making a sanctions award to a party, a court may include the “costs, expenses, and attorneys’ fees” that the party victimized by the sanctionable conduct incurred in obtaining the award. Id. After all, those costs are, in the statute’s terms, “incurred because of such conduct.” Id. If there were no sanctionable conduct there would have been no proceeding to impose sanctions. Because the costs arising from the sanctions proceedings were “occasioned by the objectionable conduct,” McMahan, 256 F.3d at 1128 (citing Peterson, 124 F.3d at 1396), a district court may include costs arising from the sanctions proceedings in the sanctions award.

Because the statutory language is unambiguous, we could end our analysis there.

The opinion went on to discuss policy reasons why the costs incurred in prosecuting a sanctions motion are recoverable.

The "dissent is organized as follows. Part I sets out Rule 30, explains the purpose of an errata sheet, and addresses how courts enforce Rule 30’s requirements pertaining to errata sheets. Part II initially establishes that Karen Amlong fully understood how, under Rule 30, an errata sheet becomes part of a deponent’s deposition and then explains that she did not intend the 'errata sheet' she sent defense counsel to comply with Rule 30 and become part of Norelus’s deposition. Part III establishes that defense counsel failed to comprehend this and, thus, erroneously concluded and represented to the court that the 'errata sheet' was part of Norelus’s deposition. In turn, part IV shows how defense counsel’s error led to the § 1927 sanctions at issue in this appeal. Finally, part V explains why, in light of the foregoing, levying these sanctions was improper."

Thursday, December 23, 2010

This was sent to me back in September and for whatever reason I did not put it up [I see that the South Florida Lawyers Blog did post it HERE]. In the order quoted below, United States Magistrate Judge David A. Baker required counsel who had previously been admitted pro hac vice to obtain local counsel that lives within Florida twelve months out of the year or the pro hac admission would be revoked. The court stated:

The Court finds that there is no basis to revoke Mr. Sprinkle’s pro hac vice admission. However, the Court admonishes Mr. Sprinkle for his lack of candor in failing to disclose the Grievance Commission Request for Investigation filed against him. Moreover, Mr. Sprinkle chose as local counsel, an attorney who is not “resident in Florida,” Ernest I. Gifford, but has his primary residence in Michigan. Mr. Gifford is not a Florida resident within the meaning of the Local Rule and therefore cannot serve as local counsel for Mr. Sprinkle’s appearances in this Court. The fact that “Mr. Gifford considers himself to have dual residency in Florida and Michigan” does not make him a resident of Florida, when the main office of his law firm remains in Michigan, he votes in Michigan, and does not have a homestead in Florida. See Doc. 29. Mr. Gifford is not qualified to serve as local counsel in this case.

It is ORDERED that Plaintiff’s Motion to Revoke is GRANTED in part and DENIED in part and Defendant’s Motion for Sanctions is DENIED. Mr. Sprinkle’s pro hac vice admission is not revoked at this time, subject to his obtaining appropriate local counsel resident in Florida (twelve months out of the year) within 14 days of the date of this Order.

Finally, the Court observes that an inordinate amount of time and effort have been devoted by counsel to what is an essentially extraneous matter. Going forward, counsel are admonished to concentrate on the merits of the litigation, leaving any issues of personality conflict, and to conduct themselves with the highest degree of professionalism.

Wednesday, December 22, 2010

Update: On November 7, 2011, the United States Supreme Court vacated the opinion discussed below. The Supreme Court's opinion is discussed HERE. The original post remains unchanged below:

In KPMG, LLP v. Cocchi, et al (4D09-4867 & 4D10-988), the Fourth District affirmed two orders entered by the trial court. The first denied a motion to compel arbitration and the second denied a motion to dismiss on forum non conveniens grounds. The facts were described as follows:

The plaintiffs are nineteen individuals and entities, most of whom are Florida residents, who bought a limited partnership interest in one of three limited partnerships – referred to collectively here as the “Rye Funds.” The limited partnerships invested with Bernard Madoff in his infamous Ponzi scheme and lost millions of dollars. The limited partnerships were managed by Tremont Group Holding, Inc., and Tremont Partners, Inc. The plaintiffs sued the limited partnerships and the Tremont defendants, together with its auditing firm KPMG. As to KPMG, the plaintiffs alleged causes of action for negligent misrepresentation, violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), professional malpractice, and aiding and abetting a breach of fiduciary duty.

The court concluded:

We affirm the order denying the motion to compel arbitration, because the arbitral agreement upon which KPMG relied would not apply to the direct claims made by the individual plaintiffs. We affirm the order denying the motion to dismiss for forum non conveniens, because neither the motion nor its attached affidavit, nor the argument at hearing, was legally sufficient to overcome the strong presumption in favor of the resident plaintiffs’ choice of forum.

With regard to the arbitration issue, applying Delaware law, the court stated:

In Tooley v. Donaldson, Lufkin & Jenrette, Inc., 845 A.2d 1031, 1033 (Del. 2004), the Delaware Supreme Court established a test when analyzing whether an action by stockholders (or limited partners) was direct or derivative of the corporation/general partnership’s cause of action. The questions which must be asked are: 1) who suffered the harm, the corporation or the stockholders individually, and 2) who received the benefit of the recovery or remedy? Because the claims of negligent misrepresentation and violation of FDUTPA allege individual harm to the plaintiffs and involve torts directed at the individual limited partners, we conclude that the limited partners suffered individual harm....We therefore affirm the trial court’s denial of the motion to compel arbitration.

With regard to the forum non conveniens issue, the court stated:

KPMG also moved to dismiss on forum non conveniens grounds, claiming that all of its activities occurred in New York where it audited the defendants. With its motion it filed a two-page affidavit of a senior manager, stating that in connection with its agreement to audit the various limited partnerships, it performed all of its work in New York. The trial court denied the motion, concluding that the affidavit was insufficient to carry KPMG’s burden of persuasion. On appeal, KPMG argues, among other things, that the trial court applied an incorrect legal standard in ruling on the forum non conveniens issue. Even if we were to agree, we conclude that the motion and supporting affidavit were legally insufficient to warrant a change of forum.

The court then concluded:

Florida has adopted the doctrine of forum non conveniens in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86 (Fla. 1996), and it is now codified in Florida Rule of Civil Procedure 1.061(a)....A strong presumption favors a resident plaintiff’s choice of forum....The defendant seeking dismissal bears the burden of persuasion as to each factor....

***

In this case, the motion and the affidavit addressed only one private interest factor...Without addressing all of the factors of private interest, as well as factors of public interest, the motion, the affidavit and the hearing argument were decidedly inadequate to warrant dismissal of the action. The trial court cannot be said to have abused its discretion in determining that the motion and affidavit were insufficient to carry the burden for KPMG.

In United States v. Rodriguez (08-16696), the Eleventh Circuit disagreed with the Second Circuit and began its opinion as follows:

This case poses the question of whether there is a vindictive judge or cowardly counsel exception to the contemporaneous objection rule. Unless there is such an exception, the only issue that the appellant is pressing on appeal is barred for failure to object because she cannot meet the requirements of the plain error rule. Disagreeing with the Second Circuit, we hold that the possibility a judge may be unhappy with an objection does not excuse the failure to make it.

The opinion is twenty-two pages long and clearly discusses the issue in more detail. The Second Circuit cases that the court disagreed with are: United States v. Leung, 40 F.3d 577 (2d Cir. 1994), and United States v. Kaba, 480 F.3d 152 (2d Cir. 2007). The court disagreed for a number of reasons, including:

"The first is that under settled law if a party does not move to recuse a judge on actual bias grounds, review is only for plain error.";

"The second reason that we reject Rodriguez’s position, and the Second Circuit’s decisions on which it is based, is that they substantially undermine the important interests served by the contemporaneous objection rule. As we have explained, “The narrowness of the plain error rule is a reflection of the importance, indeed necessity, of the contemporaneous objection rule to which it is an exception.” United States v. Pielago, 135 F.3d 703, 709 (11th Cir. 1998). Requiring an objection at trial “fosters finality of judgment and deters ‘sandbagging,’ saving an issue for appeal in hopes of having another shot at trial if the first one misses.”;

"The third reason we reject Rodriguez’s position is that it is demeaning to both judges and attorneys. Judges know that it is the role and duty of attorneys to represent their clients zealously and object to what they perceive to be errors or potential errors. Many objections have as their premise that the judge has violated, or but for the attorney’s intervention would violate, some law, rule of procedure, or right of the attorney’s client. That is the stuff of which objections are made. To suggest that judges, whose solemn duty it is to apply the law fairly and impartially to all parties before them, would vindictively respond to an attorney’s objection by punishing the client is demeaning to the judiciary. And to suggest that lawyers, who perceive a valid basis for objection, would cower in their seats, fearing retribution from the bench if they do object, is demeaning to the bar. We reject any vindictive judge or cowardly counsel exception to the contemporaneous objection rule."

After discussing a number of other issues, the Eleventh Circuit discussed the Supreme Court's opinion last year in Caperton v. Massey. Caperton was previously discussed on this blog HERE, HERE, and HERE. I only single out the discussion about Caperton as Caperton received a significant amount of attention. The court stated:

The Supreme Court has decided that in at least some situations the probability of actual bias is enough to violate due process. In Caperton v. A. T. Massey Coal Co., ___U.S.___, 129 S.Ct. 2252 (2009), the Court held that a state supreme court justice was required to recuse himself from a litigant’s case where that litigant had made significant contributions to the justice’s campaign for office. Id. at 2256–57. The Court’s holding, however, was narrow. See id. at 2265. It noted the “extreme facts” of that case and limited its holding to the “extraordinary situation” where the “probability of actual bias rises to an unconstitutional level.” Id. There is no probability of actual bias in this case. In fact, Rodriguez concedes that there was no actual bias. So, she has failed to meet the second requirement of the plain error rule.

Wednesday, December 15, 2010

In Ballinger v. Bay Gulf Credit Union(2D09-4561), the Second District reversed a final judgment based upon the contents of the verified complaint. Interestingly, the court found "no error in two of the issues raised by" the appellant. However, concluded that "we must reverse because the verified complaint was insufficiently pleaded and, therefore, final summary judgment was improvidently entered."

In "verified complaint, a Bay Gulf employee....stated that [she] read everything and that the facts stated were "true to the best of my knowledge and belief." The court stated:

We acknowledge that "[a] verified complaint may serve the same purpose as an affidavit supporting or opposing a motion for summary judgment."...."However, in order to be so considered, the allegations of the verified complaint must meet the requirements of the rule governing supporting and opposing affidavits."....In this case, the verification reflects it was not based on Lenth's personal knowledge. Bay Gulf asks this court to construe the verification as if it were based on Lenth's personal knowledge because the verification does not say it was based on Lenth's "information and belief" but, rather, states it was based on Lenth's "knowledge and belief." However, we decline to impose such a construction because the fact that the verification included the word "belief" indicates it was not based on Lenth's personal knowledge. And, in fact, it is apparent from the record that Lenth could not state she had personal knowledge of the loan documents in question. The qualified verification here fails to meet the requirements of rule 1.510(e) and, therefore, should not have been considered by the trial court on a motion for summary judgment.

Saturday, December 11, 2010

Update: On November 30, 2011, the opinion discussed below was withdrawn and an en banc opinion released in its place. The en banc opinion is discussed HERE.

In Alvarez v. Cooper Tire & Rubber Company(4D08-3498), the Fourth District reversed the trial court's judgment entered after a jury verdict and remanded for a new trial because the plaintiff was not allowed to conduct sufficient discovery. The opinion began:

Relevant evidence in civil cases — that is, the acceptable knowledge base of facts for the jury — is found in an aggregate of historical facts, data, information, objects and opinions that the law allows the parties to place before the finder-of-fact to decide the case. To assist the parties in assembling all the knowledge fairly needed to prove a cause of action or defense, the rules establish a pretrial process called discovery, which (as its name implies) is also meant to afford a means of apprehending that which they do not know. Hence, the process begins with a wide sweep, gathering many kinds of knowledge only possibly germane (if at all), yet capable of leading to admissible trial evidence. At discovery’s end, the accumulated knowledge is distilled into the evidence the parties can lay before the jury.

When this discovery is not allowed to have its intended scope — for example, when one party is blocked from ascertaining and acquiring from the other party unprotected, relevant information and data that is admissible at trial — the sum of knowledge placed before the jury will be unfairly deficient, hence misleading. The whole structure of the trial will be faulty. The jury’s basis for resolving the facts will be tilted against the party denied that access. Trial then will be an expedition on an errant course. Because the possible factual base for the jury has been unreasonably curtailed peremptorily, a jury’s resolution of the facts will be unreliable, and its verdict untrustworthy.

The opinion provided a detailed account of the specific facts at issue and why it was error to refuse the plaintiff the opportunity to conduct the discovery. The opinion concluded:

As we saw in the beginning, the apparatus of civil litigation has incorporated into its structure the right of all parties to discovery of facts, information and data involving the subject matter of the dispute. Denying one of the parties that discovery — especially as to essential evidence critical to proving a claim or defeating a defense — is a manifest injustice. Within the meaning of the harmless error law, the denial here was considerably prejudicial and perpetrated a substantial injustice on the plaintiff in this litigation.

Upon remand, discovery will have to resume, governed by the holdings of this opinion. Proper and full discovery will then require a new trial, at which both sides will have the right to lay all their relevant, admissible evidence before the jury.

It certainly looks better to cite to the shorter address. and it makes formatting significantly easier. However, is it proper? It does not indicate who is actually hosting the web site and, technically, is not the source of the information cited. A website can always be taken down, however, when you cite to a shortened address you have the potential that the actual web site stays available but the shortener is not. The New York Times had a service Nyturl, however, the New York Times shut down the service due to abuse and all links became unavailable. THIS article stated:

Enter NytUrl, the ‘trusted’ URL shortener for NYtimes.com articles. Update: The site and all the redirects were taken down “due to abuse.”

I am not sure if there is an actual answer to the question in the title of this post or not.

In LR5A-JV v. Little House(5D09-3857), the Fifth District affirmed the trial courts order scheduling a foreclosure sale. A prior decision in the same case can be found at the following cite: LR5A-JV, LP v. Little House, LLC, 998 So. 2d 1173 (Fla. 5th DCA 2008). In 2008, the Fifth District concluded its opinion by stating "Accordingly, we AFFIRM the final judgment of foreclosure and order of clarification and REMAND with instructions to proceed to foreclose the superior mortgage of LR5A-JV."

After the case was remanded, the condominium association filed a motion in the trial court requesting that the trial court schedule the foreclosure sale. Over the objection of the judgment holder, the trial court granted the motion and scheduled the sale. The judgment holder argued that "the Association, as a junior lien holder, cannot demand that a foreclosure sale date be set, and the trial court erred as a matter of law in setting the date for the judicial sale. The Association counters that section 45.031(1), gives the trial court the ultimate authority to order a judicial sale." The court "agree[d] with the Association."

The court stated that the statutes "clearly required the trial court to set a judicial sale date between 20 to 35 days after entry of the final judgment or order directing a judicial sale, but allows an extension with the plaintiff’s consent." Further, "Florida decisional law reflects that the matter of fixing the time for a judicial sale is set by statute, but that the trial court has reasonable discretion within the statutory framework to set or reset the date for such sale."

The court also noted the Florida Supreme Court's 2010 amendment to the Florida Rules of Civil Procedure relating to motions to cancel foreclosure sales. The court stated:

the Florida Supreme Court adopted amendments to the rules of civil procedure relating to mortgage foreclosures. In re Amends. to the Fla. R. of Civ. P., 35 Fla. L. Weekly S97 (Fla. Feb. 1, 2010). Included in these amendments is Form 1.996(b), entitled “Motion to Cancel and Reschedule Foreclosure Sale,” which sets out a list of reasons for cancellation of a scheduled judicial sale, and provides, “If this Court cancels the foreclosure sale, Plaintiff moves that it be rescheduled.” In other words, the supreme court, in adopting the form, apparently did not contemplate that a judicial sale would be left in limbo.

The Florida Supreme Court issued a new opinion on the a different subsection of the rule just yesterday, December 9, 2010, which was discussed HERE.

Thursday, December 9, 2010

The Florida Supreme Court released the opinion below this morning amending the form foreclosure final judgment. The court stated:

Because, unlike the other amendments, the amendments to form 1.996(a) had not been published for comment prior to adoption, the opinion adopting the amendments provided a sixty-day comment period with regard to the amendments to that form. Several comments were filed, and the committee filed a response.

Upon consideration of the comments and the committee’s response thereto, we adopt two further amendments to form 1.996(a). First, in recognition of assertions in the comments that flat rate attorneys’ fee agreements are common in mortgage foreclosure cases, we amend the attorneys’ fee provisions of the form to accommodate this option. Second, in order to ensure that the provisions of the form are not contrary to the Protecting Tenants at Foreclosure Act of 2009, Pub. L. No. 111-22, §§ 701-704, 123 Stat. 1660-62, we delete the sentence from paragraph six of the form stating, “If any defendant remains in possession of the property, the clerk shall without further order of the court issue forthwith a writ of possession upon request of the person named on the certificate of title.”

In Peter Halmos, et al v. Bomardier Aerospace Corp. (10-12411), the Eleventh Circuit affirmed THIS order from the district court dismissing a claim for malicious prosecution. The court noted that while "at the Fed. R. Civ. P. 12(b)(6) stage, we 'primarily consider the allegations in the complaint,” but “[t]he court is not [always] limited to the four corners of the complaint.' Long v. Slaton, 508 F.3d 576, 578 n.3 (11th Cir. 2007)." In addition to looking to the four corners of the complaint:

In granting the motion to dismiss, the district court properly looked to the complaint and its attachments, and the record from an action in a Texas lawsuit. You can view the briefs at the following links: Initial Brief; Answer Brief; and Reply Brief.

Wednesday, December 8, 2010

The 2011 DRI Appellate Advocacy Seminar is being held at the JW Marriott in Orlando on March 10-11, 2011. The seminar has an impressive list of speakers and a number of interesting topics. The list of speakers/panelists is below:

In simple terms, Med-Data claims that one of its former employees developed a software program to aid in medical insurance billing and that the employee took the program with him when he began working for Revello. Revello is marketing a computer program that Med-Data claims is based on its trade secrets. Med-Data sought to discover the computer source code used in Revello's program and, over Revello's objections that its program was a trade secret, the circuit court ordered it to produce the program to Med-Data's expert. Revello seeks a writ of certiorari to quash the order.

The court's analysis is copied, almost in its entirety, below:

In response to a defense discovery request for its computer source code, Med-Data stated: "[a]s to source codes, [Med-Data] declines to publish the exact nature of the trade secrets." Under Florida's "at issue" doctrine, "[w]hen a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence," he waives his right to claim that the matter is privileged in pretrial discovery....Thus it is clear that Med-Data has neither identified with reasonable particularity the nature of its claimed trade secret nor established that it exists. As such, it was not entitled to discover the computer source code used in Revello's program.

Still, Med-Data is entitled to some protection of its alleged trade secret in pretrial discovery. Ordinarily such matters should be submitted to the circuit court to conduct an in-camera review. But because the alleged trade secret is a computer program, the evidence of its existence likely will consist of computer source code. We presume this from the fact that Med-Data is seeking to discover the computer source code of Revello's program in order to prove that Revello has misappropriated the alleged trade secret. If the circuit judge does not have the requisite experience in examining such code, he may wish to appoint a neutral computer expert to review MedData's program. If it is established that Med-Data indeed has a trade secret to protect, the court may revisit its discovery request for Revello's computer source code and Revello's objections to discovery and craft similar protection for Revello's alleged trade secret.

*Disclaimer: GrayRobinson, P.A. was involved in the above-referenced action.

In Schuman v. International Consumer Corporation, et al (4D09-951), the Fourth District reversed the trial court's order denying a motion for relief from judgment and held that "the trial court erred since the trial court should not have denied the motion without an evidentiary hearing where there was a 'colorable' claim of entitlement to relief." Generally, the facts were stated as follows:

Appellant filed a motion for new trial and relief from the judgment, alleging that he did not receive notice of the trial. The counsel for appellant had just been retained and had not received any papers regarding the trial date. Further, prior counsel advised the new counsel only that there was an upcoming calendar call on this matter. The trial court denied appellant’s motion and this appeal ensues.

The court held that:

We conclude that the trial court abused its discretion by failing to hold an evidentiary hearing on the motion for relief from judgment. “A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief.” Clearly, in the present case, the motion for relief from judgment stated a claim of “colorable entitlement to relief” that would require the trial court to conduct an evidentiary hearing before dismissing the motion. We reverse and remand for an evidentiary hearing.

The Condominium Association hired Zevuloni & Associates as a public insurance adjuster to handle its claim for benefits under a casualty insurance policy. The contract for adjustment provided for a fee of 10% of the proceeds recovered by the Association. There has never been any recovery of insurance benefits by the Association. Nevertheless the public adjuster sued the Association for its fee.

After the trial court granted the associations motion to dismiss, it denied the associations motion for prevailing party attorneys fees as provided in the contract. The court stated:

The adjuster’s suit for fees without any recovery by the insured Association was meritless and was properly dismissed. The Association was undeniably the prevailing party in that action.

Because "Courts have no discretion to decline to enforce this kind of contractual attorneys fees provision," the order denying attorneys fees was reversed.

Appellants were served with a foreclosure complaint in February 2009, to which they did not file a response due to what they understood to be assurances by the loan servicer representative. Appellants alleged they contacted the loan servicer representative immediately after being served with the complaint. Appellants were assured by the loan service representative that the foreclosure proceeding would be abated pending application for, and approval of, a loan modification agreement. Appellants alleged that they faxed the application for the loan modification agreement on April 7, 2009. In support of this assertion, Appellants attached affidavits and the facsimile cover sheet to their motion to set aside and vacate a default judgment.

The court held that those facts were sufficient to require an evidentiary hearing. The court stated:

It is the trial court’s failure to conduct an evidentiary hearing that warrants reversal of the denial of Appellants’ motion to set aside the default judgment. This court has held that a trial court is required to conduct an evidentiary hearing before entering an order denying a motion to set aside a judgment. See Seal v. Brown, 801 So. 2d 993, 994-95 (Fla. 1st DCA 2001). Furthermore, if a moving party’s allegations raise a colorable entitlement to relief, a formal evidentiary hearing and appropriate discovery is required. Id. at 995.

As in the proceedings below, Appellees do not contest Appellants’ factual assertions; rather, they essentially argue that Appellants’ allegations are facially insufficient to warrant entitlement to setting aside a default judgment. We disagree. Appellants’ allegations and supporting documents make a colorable case for their assertion that their failure to respond to the foreclosure complaint was due to their settlement negotiations and complying with what they understood to be a modified mortgage agreement, all of which may reasonably have led them to believe that the foreclosure action was abated.

Friday, December 3, 2010

In Rodrigo v. JPMorgan Chase Bank, N.A. (4D10-1787), the Fourth District affirmed the trial court's decision in part and dismissed the appeal in part for lack of jurisdiction. The court stated that "Appellant appeals a non-final order granting her motion to restore possession of her home but with the condition that she turn on the water and air conditioning to her unit."

First, the trial court's order was affirmed because "During the hearing on appellant’s motion to restore possession of property, appellant’s counsel agreed to these conditions. Having invited the alleged error, appellant cannot now be heard to complain." Therefore, the order was affirmed.

The Appellant also sought review of an order on a motion for rehearing of the order, now affirmed, above. The court stated: "A non-final order denying a motion for relief from a non-final order is not reviewable on appeal....Accordingly, we dismiss the appeal as to the order denying the motion for relief."

In Mash v. Lugo (5D10-2256), the Fifth District sanctioned one of the appellees for failure to appear at appellate mediation. The appellant moved for sanctions after the appellee failed to appear. The court stated:

In response to Mash's motion, appellees' counsel filed affidavits averring that Lugo's and Irizarry's insurer, Aequicap Insurance Company, held the exclusive right to decide to defend or settle any claim or suit within policy limits, that Lugo and Irizarry did not have the authority to bind the insurer to any settlement, and that attorney Muniz had full settlement authority on behalf of the insurer. We grant the motion.

Florida Rule of Appellate Procedure 9.720(a) provides that unless excused by the court, a party is deemed to appear at a mediation conference if the following persons are physically present or appear electronically upon agreement of the parties:

(1) The party or its representative having full authority to settle without further consultation.

(2) The party's trial or appellate counsel of record, if any. If a party has more than one counsel, the appearance of only one counsel is required.

(3) A representative of the insurance carrier for any insured party who is not such carrier's outside counsel and who has full authority to settle without further consultation.

Here, neither appellee appeared, nor did any representative of their insurance carrier. These individuals' appearance was not excused by court order, nor was there an agreement that they could appear electronically.

Appellees' counsel's claim that he had full authority to settle the case on behalf of the insurer does not excuse the failure to attend of the appellees and a representative of their insurer. (By its express terms, subsection (a)(3) excludes an insurer's outside counsel from being considered the insurance carrier's representative.)

The court ordered the appellee that failed to appear to pay the entire cost of the mediation plus the reasonable attorneys fees and costs for the appellant incurred in preparing for and attending the appellate mediation and filing the motion for sanction

Wednesday, December 1, 2010

In the past week the Third District has released two opinions relating to service of process. In both cases a final judgment was reversed because service of process had not been accomplished. The message is clear, if it wasn't before, service statutes must be strictly complied with. Both decisions are discussed below.

The appellant appealed a summary judgment of foreclosure claiming that he had never been served. The court stated: "Because the record unequivocally confirms that Opella was neither served with process nor waived service, we reverse."

While Bayview made a number of attempts to serve Opella individually and on behalf of 21 NW 59th Street, Inc., it never managed to serve process on him....Despite the fact that neither Opella nor 21 NW 59th Street, Inc. had been served with process, Bayview moved for summary judgment against both, expressly alleging that “[s]ervice of process has been properly perfected upon the Defendants herein.” Following a hearing on this motion, a final summary judgment of foreclosure was entered in pertinent part upon a finding that “[s]ervice of process has been duly and regularly obtained over NW 59TH STREET, INC., [and] STEVEN R. OPELLA . . . .

The Third District disagreed and stated "Because the record unequivocally confirms that no service of any kind was had on Opella, we agree [with Opella]." The court also stated:

We also reject Bayview’s argument that Opella and 21 NW 59th Street, Inc. failed to raise, and thereby waived, sufficiency of service of process in their “pro se answer.” We reject this argument, first because neither Opella nor 21 NW 59th Street, Inc. filed a pro se answer or otherwise made an appearance in the court below. Rather, one month after it moved for summary judgment, Bayview’s attorney, Brian L. Rosaler, concededly without agreement or authorization from Opella or 21 NW 59th Street, Inc., filed a “Notice of Filing Defendant’s Pro Se Answer,” notifying the court below that Bayview was filing Opella and 21 NW 59th Street, Inc.’s pro se answer. Attached to this notice was an undated letter that Opella purportedly sent to Rosaler, Bayview’s attorney, offering to settle the parties’ dispute over the subject mortgage. On these facts, we see no basis on which to conclude that Opella and 21 NW 59th Street, Inc. either expressly or indirectly waived service of process or otherwise subjected themselves to the jurisdiction of the courts....

Second, the purported “answer” filed by Brian L. Rosaler, Bayview’s attorney, is nothing more than an undated letter to counsel for one of the litigants. This document does not remotely resemble an answer which under Florida Rule of Civil Procedure 1.100(c) must “have a caption containing the name of the court, the file number, the name of the first party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order, as the case may be.”

As with the Opella case above, the Third District reversed a judgment based upon the failure to serve the defendant with the complaint. The court stated:

The plaintiff’s attorneys, Golson Felberbaum Law Firm, hired Pro-Vest LLC, a process service company, to serve Ms. Bennett. Christopher P. Mas, a Pro-Vest employee, filed a verified return of service on December 29, 2008. The return indicated that individual service was accomplished on December 20 at 4:13 p.m. The return further indicated that “DEFENDANT REFUSED TO DISCLOSE MILITARY STATUS; PROPERTY IS NOT A MOBILE HOME. I asked the person spoken to if the person served is married and I received a negative reply.”.....However, the front and reverse sides of the summons attached to the return were covered with the process server’s notes. These notes reflected the server’s attempts to serve Ms. Bennett at her house to no avail....

Ms. Bennett never filed a responsive pleading in the case. Christiana Bank filed motions for default and for summary judgment. In May 2009, Christiana Bank obtained an order granting default and a final foreclosure judgment. The sale was scheduled for September 4, 2009.

On September 2, Ms. Bennett, through counsel, filed a motion to vacate the judgment and to stay the foreclosure sale. The trial court denied the motion to stay the sale, but granted Ms. Bennett a hearing on the motion to vacate.....After the hearing, the court entered an order finding that the service was “questionable,” but that there was no meritorious defense to the foreclosure. The court denied the motion to vacate.

With regard to the law, the court stated:

A process server’s return which is regular on its face is presumed valid absent clear and convincing evidence to the contrary....Moreover, a simple denial is insufficient to impeach the validity of service....However, in this case, Ms. Bennett raised more than her own sworn denial. The process server’s own notes, an admission against the interest of his principal, see § 90.803(18)(d), Fla. Stat. (2009), prove the insufficiency of service. The process server’s last entry reflects that he “Saw Curtains Move, Read Aloud Docs, SVP Docs at Door.”

Christiana Bank argues that there is no testimony to explain what “SVP” means, but “Docs at Door” is quite self-explanatory. Curtains may move because of the wind or curious cats, and not just because some prospective defendant is attempting to avoid service. The pertinent statute is clear...The process server’s notes contain no evidence of compliance with these requirements. Rather, the notes squarely conflict with his attestation that Ms. Bennett herself refused to disclose a military status. As to Ms. Bennett’s marital status, the process server stated: “I asked the person spoken to if the person served is married and I received a negative reply.” That recitation avoided an identification of the “person spoken to” and again implies that “the person served” was personally handed the papers.

Far more troubling is the fact that Christiana Bank and its attorneys ignored this discrepancy in the return of service. In its motion for summary judgment Christiana Bank alleges that the “Defendant(s) were duly and regularly served with process.” The Bank’s proposed Final Judgment of Foreclosure, prepared by its attorneys, stated: “Service of process having been duly and regularly obtained over DEBBIE BENNETT ....”

***

Once a defect in the return of service is shown, the burden of demonstrating regular service is on the party seeking to invoke the court’s jurisdiction....That burden was not met here.....Where no in personam jurisdiction is obtained over a defendant, the defendant is not required to demonstrate a meritorious defense to set aside the default.....The trial court should not have required Ms. Bennett to demonstrate a meritorious defense to the action once it became clear that the summons and complaint were never properly served.

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